BURDETTE v. HOLLINGSWORTH
OPINION. Signed by Judge Renee Marie Bumb on 5/2/2017. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WARDEN J. HOLLINGSWORTH,
Civ. No. 16-142 (RMB)
BUMB, United States District Judge
pursuant to 28 U.S.C. § 2241 (Pet., ECF No. 1), seeking relief
from expulsion from the Residential Drug Abuse Program (“RDAP”)
at FCI Fort Dix, and transfer to another facility.
(Government’s Response to Petition for Habeas Corpus Pursuant to
28 U.S.C. § 2241 (“Gov’t Resp.”, ECF No. 5.)
Petitioner filed a
(Petr’s Reply, ECF No. 6.)
Petitioner was sentenced on June 20, 2008, in the United
States District Court for the District of Maryland, to a prison
conviction for transportation of child pornography in interstate
and foreign commerce by means of computer, in violation of 18
U.S.C. § 2256.
United States v. Burdette, No. 07 Cr. 318 (D.
Md.) (Docket No. 27).
Petitioner is presently confined in FCI
Ft. Dix. (Pet., ECF No. 1 at 2.)
Assuming the maximum possible
good-conduct time, his projected release date is May 16, 2018.
(Declaration of Tara Moran (“Moran Decl.)”, ECF No. 5-2, Ex. 1.)
On June 11, 2014, Petitioner signed a document entitled
“Agreement to Participate in a Bureau of Prisons Residential
Drug Abuse Treatment Program.”
(Declaration of Joshua Houseman
“Houseman Decl.”), ECF No. 5-1, ¶3; Ex. 2.)
By agreeing to
behavior, and follow all BOP policies, rules, and regulations.
(Id.) If he withdrew or was expelled from RDAP, the Agreement
contained a warning that he would lose all incentives, including
any potential early release.
(Id.) Petitioner also signed the
RDAP “Code of Conduct,” which warned that Petitioner could be
expelled for unacceptable behavior.
(Id., ¶4; Ex. 3.)
demonstrate specific behavioral changes to successfully complete
(Id., ¶4; Ex. 4.) He commenced RDAP on April 3, 2015.
(Id., ¶5; Ex. 1.)
On July 15, 2015, Petitioner met with the RDAP clinical
team to discuss his lack of progress in treatment.
communication deficits, poor/aggressive body language, struggle
He tended not to interact with a majority of
the community, limiting himself to a few peers all of whom had
similar behaviors, criminal tendencies, and beliefs. (Id.) The
following actions were taken: (1) he was given a wristband to
signify he was struggling with the program; (2) he was given a
formal warning; and (3) additional activities were added to his
group, asking for feedback on his negative behaviors.
Ex. 6.) The group gave Petitioner examples of his behavior,
treatment. (Id.) His reaction was to rebut or challenge his
This information was relayed to the rest of the
BOP drug treatment staff.
The clinical staff again met with Petitioner on July 30,
(Id. ¶8; Ex. 7, 8.)
They noted that Petitioner had not
demonstrated progress and had not met expectations in any area
of treatment. (Id.)
Therefore, the clinical team determined
encouraged him to seek nonresidential substance abuse treatment,
as well as sex offender treatment.
(Houseman Decl., Ex. 7.)
Petitioner was expelled from RDAP on July 30, 2015.
The drug abuse program coordinator explained:
The inmate has failed to show progress in
his treatment despite being given feedback
on his behaviors. He was given a formal
manipulation, and continued to display the
activities. He has received unfavorable 60day reviews and continues to show limited or
no behavioral application.
He takes no responsibility for his actions.
At this time Mr. Burdette is expelled form
[sic] RDAP. He is encouraged to seek out
services while on the compound. He can reapply for RDAP after 90 days if he wishes.
(Id., Ex. 8.)
“Informal Resolution Form.”
(Moran Decl. ¶5; Ex. 2.)
accommodating institution where all activities are on one level.
I am a chronic care inmate, medically prohibited from climbing
and reliant on a
wheelchair/walker to travel any distance. The limitations were
contributing and aggravating factors in my expulsion.”
Decl.; Ex. 2.)
A BOP counselor responded on September 20, 2015, stating
that Petitioner was expelled because of his poor performance,
not his medical issues.
(Moran Decl., Ex. 2.)
also noted that Petitioner could re-apply to the program after
90 days, and that the program took place on the first floor, so
Petitioner’s limitations were not an impediment.
Petitioner submitted an appeal to the warden on Form BP-9.
(Moran Decl., ¶6; Ex. 3.)
The appeal was rejected as untimely,
submitted within 20 days of the event complained of.
Petitioner appealed to the Regional Director, and then the BOP
General Counsel’s office.
(Moran Decl., ¶7; Ex. 4 & 5.)
appeals were rejected, but not denied, based on untimeliness.
substance abuse treatment for each prisoner the [BOP] determines
has a treatable condition of substance addiction or abuse.” 18
appropriations, the BOP must provide residential substance abuse
As an incentive for successful completion of the
program, the BOP may, in its discretion, reduce the sentence of
a prisoner convicted of a nonviolent offense by up to one year.
18 U.S.C. § 3621(e)(2)(B).
28 C.F.R. § 550.53 (effective March 16,
2009) provides that the inmate must have a “verifiable substance
use disorder,” 28 C.F.R. § 550.53(b)(1), and that the “Drug
Abuse Program Coordinator decides whether to place inmates in
28 C.F.R. § 550.53(e). BOP Program Statement 5330.11
governs application of RDAP placement.
“[i]nmates may be removed from the program by the Drug Abuse
Program Coordinator because of disruptive behavior related to
ordinarily will be given one “formal warning” before expulsion.
Id. § 2.5.12(d)(2).
BOP staff will often provide an inmate with
at least one treatment intervention prior to removal.
Exhaustion of Administrative Remedies
“Federal prisoners are ordinarily required to exhaust their
administrative remedies before petitioning for a writ of habeas
Prisons, 98 F.3d 757, 760 (3d Cir. 1996) (citing Bradshaw v.
Available at www.BOP.gov.
Exhaustion is not required where the petitioner establishes that
it is futile or where the goals of exhaustion would not be met.
Cerverizzo v. Yost, 380 F. App’x 115, 116 (3d Cir. 2010) (per
“[A] procedural default generally bars review of a
federal habeas corpus petition absent a showing of cause and
See Moscato, 98 F.3d at 761.
“Cause” is something
Coleman v. Thompson, 501 U.S. 722, 753 (1991).
inmates confined in institutions operated by the BOP for “review
of an issue which relates to any aspect of their confinement.”
28 C.F.R. § 542.10. For the first step, an inmate must attempt
If this fails, the inmate may file an administrative
remedy request, Form BP-9, with the warden of the institution,
within twenty calendar days of the date of the event giving rise
to the complaint.
28 C.F.R. § 542.14.
If the warden denies the administrative remedy request, the
inmate may file an appeal with the BOP regional director, on
director denies the appeal, the inmate may appeal to the general
counsel of the Federal Bureau of Prisons, on Form BP-11, within
thirty calendar days from the date of the regional director’s
28 C.F.R. § 542.15 “Appeal to the General Counsel
(Central Office) is the final administrative appeal.”
v. Shartle, Civ. Action No. 13–7613(RMB), 2014 WL 47937, at *1
(D.N.J. Jan. 7, 2014.)
Respondent asserts that Petitioner did not properly exhaust
because his BP-9 form was not timely.
(Gov’t Resp., ECF NO. 5
He filed a BP-8 on August 17, 2015, challenging his
expulsion from RDAP on July 30, 2015.
(Moran Decl., Ex. 2.)
The BOP responded on September 20, 2015. (Id.)
not file a BP-9 with the warden until October 14, 2015.
Decl., Ex. 3.)
Even if the time to respond to the BP-8 is
excluded, the BP-9 was still untimely.
(Gov’t Resp., ECF No. 5
routinely refuse to issue a BP-9 without proof that a BP-8 was
previously filed, which requires waiting for a response with no
(Pet, ECF No. 1 at 7.) Petitioner contends he gave
his completed BP-9 form to Counselor Holterman on October 6,
2015, only sixteen days after the BP-8 was denied.
Reply, ECF No. 6 at 4-5.)
Petitioner cannot access the staff offices on the second
staff wing entrance door on the morning of October 6.
Petitioner states that any delay in his BP-9 form reaching
dismissed as untimely, based on rejection of the BP-9.
The record shows that Petitioner attempted to timely file
his BP-9 form2 on October 6, 2015, but he was unable to deliver
it himself because he is in a wheelchair and did not have access
to the staff offices on the second floor.
The BOP did not
acknowledge receipt of the BP-9 until October 14, 2015. The
untimeliness of Petitioner’s BP-9 caused rejection of each of
his subsequent requests for an administrative remedy.
Petitioner has shown cause and prejudice, his necessary reliance
on another person to personally deliver his BP-9 to staff on the
The Court will address Petitioner’s claims.
Standard of Judicial Review of Expulsion from RDAP
determination to expel an inmate from RDAP is not subject to
(Answer, ECF No. 5 at 13.)
If the Court
chooses to review the RDAP determination, Respondent contends
Petitioner signed and dated the BP-9 form on October 5, 2015.
(Pet., Ex. E, ECF No. 1-2 at 13.)
capricious. (Id. at 23.) Additionally, Respondent maintains that
prison inmates do not have a protected liberty interest in RDAP
(Id. at 20-21.)
interest in RDAP participation or a sentence reduction upon RDAP
See Douvos v. Quintana, 382 F. App’x 119, 122 (3d
Washington v. Zickefoose, Civ. No. 12-303(RBK), 2012 WL 5247623,
at *3 (D.N.J. Oct. 24, 2012) (RBK) (collecting cases); Meachum
v. Fano, 427 U.S. 215, 226-28 (1976) (a statute which grants the
prison administration discretion does not confer a right on an
Therefore, Petitioner does not have a constitutional
challenge to his RDAP expulsion.
18 U.S.C. § 3625, “Inapplicability of the Administrative
Procedures Act,” provides that “the provisions of sections 554
and 555 and 701 through 706 of title 5, United States Code, do
not apply to the making of any determination, decision, or order
under this subchapter.” Although some courts3 have held there is
Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (“[t]here
is no ambiguity in the meaning of 18 U.S.C. § 3625,” . . . “any
substantive decision by the BOP to admit a particular prisoner
into RDAP, or to grant or deny a sentence reduction for
completion of the program, is not reviewable by the district
court”); Standifer v. Ledezma, 653 F.3d 1276, 1279 n.3 (10th
no judicial review of RDAP determinations under 18 U.S.C. §
3621(e), the Third Circuit has not yet decided the issue.
4705443 at *5-6 (D.N.J. Sept. 8, 2016) (collecting cases).
18 U.S.C. 3625 appears to preclude judicial review of a BOP
determination under § 3621 to expel a prisoner from an RDAP
However, because the issue is unsettled in the Third
Circuit, the Court will assume it has jurisdiction to review the
decision under the arbitrary and capricious standard set forth
in the APA at 5 U.S.C. § 706(2). See Anderson v. Schultz, Civ.
Action No. 09-4683 (RMB), 2010 WL 5017352, at *4 (D.N.J. Nov.
23, 2010) ( reviewing individual RDAP determinations using the
arbitrary, capricious or abuse of discretion standard); Fuentes
(D.N.J. Feb. 14, 2008) (same).
Petitioner contends his failure in the RDAP program was due
to his inability to access the upper floors, including the staff
Cir. 2011) (“To the extent Standifer challenges only the BOP’s
decision regarding his eligibility for RDAP participation, his
argument is expressly foreclosed by 18 U.S.C. § 3625, which
prohibits judicial review under the APA of RDAP placement
decisions.”); United States v. Hughes, Crim. No. 06-377-9, 2012
WL 3627466, at *2 n.3 (E.D. Pa. Aug. 23, 2012) (“We lack
jurisdiction to review the BOP’s individualized determinations
as to RDAP placement and eligibility.”)
(Petr’s Reply, ECF No. 6 at 9-10.)
Furthermore, in his Reply,
Petitioner argued that RDAP staff had resolved to expel him long
Petitioner was convicted of transportation of child pornography.
(Id. at 13, 15-16.)
In April 2015, a cellmate reported Petitioner to staff for
discussing child pornography.
(Id. at 11.)
with a locker search, but nothing was found.
explained he was only discussing the harshness of sentencing for
that by the end of August, all six of the inmates whose lockers
were searched for pornography had withdrawn or been expelled
(Id. at 12.)
According to Petitioner, there were 38 participants in his
program, which began on April 6, 2015.
(ECF No. 6-1 at 12.)
Petitioner does not state how many of those 38 participants
dropped out or were expelled by August 2016.
This Court finds
that the record does not support Petitioner’s belief that he was
requests does he complain that he was expelled based on the
pornography allegation and locker search.
No. 6-1 at 8-10.)
Second, Petitioner did not raise this issue
(Petr’s Reply, ECF
in his petition, but only in his reply brief.
(ECF No. 1.)
Courts need not address arguments raised for the first time in a
See Marte v. U.S., Civ. Action No. 1307259(SDW),
2015 WL 3629540, at *7 n.4 (collecting cases).
Third, three months after starting the treatment program,
Petitioner received a warning.
(ECF No. 5-1 at 17.)
point, he had already been confronted by staff members and peers
alike for his poor response to treatment in the following areas:
language, unreceptive and social rule breaking.
(ECF No. 5-1 at
About ten days later, Petitioner received feedback from
manipulate, how he isolates himself from the community, how he
is not receptive to any feedback, entitlement, and his poor
investment in treatment.”
(Id. at 19.)
(Id. at 21.)
When Plaintiff was
This evidence strongly supports the
performance in treatment.
However, the record shows that all of his treatment
television rooms, computer stations, and laundry facilities are
located on the first floor, providing opportunities for peer
inmates with physical limitations have completed RDAP at FCI
Petitioner may not have had an unlimited
opportunity to interact with other RDAP participants, but the
access he was provided was sufficient to allow the interactions
required in the program, if he chose to do so.
others to the extent required to be successful in treatment.
July 15, 2015, the clinical team noted his tendency to isolate
and limit his interactions to a few peers with similar beliefs
On July 24, 2015, his peers provided feedback about his
(Id., Ex. 6.)
(Id., Ex. 7.)
Despite a warning, he did not
Therefore, the record supports a
rational basis for Dr. Houseman’s decision to expel Petitioner
attitudes and behaviors.
See 28 C.F.R. § 550.53(g)(1) (the Drug
Abuse Program Coordinator may remove inmates from the program
due to “unsatisfactory progress in treatment.”)
transfer him to another RDAP program.4
“[T]he Bureau has nearly
Beckley v. Miner, 125 F. App’x. 385, 389 (3d Cir. 2005).
frivolous or irrational.
Petitioner states only that “The
request on the basis of the content.”
(Petr’s Reply, ECF NO. 6
The record shows that on July 30, 2015, Petitioner was
advised that he could reapply for an RDAP program after ninety
(Houseman Decl., Ex. 8.)
He did not wait 90 days, he
asked for a transfer in his BP-8 request on August 19, 2015.
Petitioner cites the Americans with Disabilities Act, in
support of his request to transfer to a different RDAP program
with better wheelchair access.
(Pet., ECF NO. 1 at 11-12.)
Petitioner, however, was admitted to the RDAP program at FCI
Fort Dix, where all treatment was held on the first floor.
Therefore, the ADA is not implicated because Petitioner was not
denied participation in RDAP due to his confinement in a
See Starego v. New Jersey State Interscholastic
Athletic Ass'n, 970 F.Supp.2d 303, 309 (D.N.J. 2013) (to succeed
on an ADA claim a plaintiff mush show “by reason of his
disability, [he] was denied the benefits of, or excluded from
participation in, such services, programs, or activities, or was
discriminated against by the defendant. . .”)
(Pet., Ex. D.)
In response, he was informed that he could make
a transfer request on October 31, 2015.
There is nothing
procedure to make a transfer request at the appropriate time.
request for a transfer was frivolous or irrational.
he is not entitled to relief.
herewith, the Court will deny the petition because the BOP’s
decisions to expel Petitioner from the RDAP program and to deny
his transfer request were not arbitrary or capricious.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: May 2, 2017
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